145. The Brown test

The essence of a constitutional ruling - any constitutional ruling - is that it restricts democracy.  It defines an area of public life over which the people are forbidden to act through majority rule.

Jeffrey Rosen's new book is called The Most Democratic Branch: How the Courts Serve America.  I haven't read it, and I assume Rosen's publisher insisted on the most provocative possible title, so I'll resist rising to the bait.  But I did read a review by Thomas Healey over at FindLaw.  Healey says a couple of very interesting things.  One of them is this:

Perhaps the biggest strike against Rosen's argument is that it fails the Brown [v. Board of Education] test. For the past fifty years, legal scholars have measured each new theory of constitutional interpretation and judicial review against the Supreme Court's school desegregation decision. If a theory can justify the Brown decision, it is viewed as at least plausible. But if a theory would require a different result in Brown - as would, for example, strict adherence to the original intent of the framers of the Fourteenth Amendment - then it is considered fatally flawed. The idea is that Brown is now a keystone of our system; any theory that would remove it would topple the whole structure too, and is thus untenable.

But the great achievement of Brown wasn't that it ended segregation in public schools at a single stroke - it didn't, of course - but that it overturned Plessy v. Ferguson, one of the handful of Supreme Court decisions that can rightfully be termed not just wrong but evil.  In Plessy, the reactionary justices of 1896 capped their their Court's 41-year campaign to reverse the political consequences of the Civil War.  With Plessy, the United States completed its surrender to the Confederate States.

It wasn't quite an unconditional surrender - out-and-out chattel slavery remained off limits - but with that exception the justices had, by 1896, given up everything the Union dead had won for the former slaves.  The essence of Plessy was simply this: American courts were prohibited from enforcing the equal protection clause of the 14th amendment.

Brown's triumph was that it overturned Plessy.  The Court's enduring shame was that 58 years elapsed between the two decisions.  Those 58 years were extraordinarily brutal years for black Americans.  But the crackers who took their children to lynchings were only expressing in concrete terms what the Court had said - obliquely, of course - in Plessy, that black people weren't entitled to the protection of the laws.

According to Healey's description of the received wisdom in academia, the key test of any constitutional theory is how it would justify the Supreme Court's acknowledgment that it had violated the United States Constitution for 58 years.   I think a far more meaningful test is: how would it eliminate the need for future Browns?  How would it prevent future Plessys?  

The test Healey describes is peculiar not only because it asks the theoretician to justify the Court's attempts to remedy its own wrongdoing, rather than to prevent the wrongdoing in the first place; but also because it asks the theoretician to eliminate that distortion in one particular way, even though we now have 52 years of proof that it wasn't a particularly effective  way.

The underlying concept is: nothing is better than Brown.  It's the best of all possible constitutional worlds.  Anything different from Brown is, therefore - by definition - substandard.  It's difficult to imagine a better illustration of the deep conservatism of the legal academy - conservatism so deep that most legal academics are wholly unaware of it, the way most Americans are unaware how deeply their personalities are the product of their nationality until they live abroad.

Healey also writes:

And what of constitutional principles? Rosen spends little time discussing the merits of various decisions, focusing almost exclusively on their practical effects.

I never thought I'd hear a professor explicitly distinguishing between a decision's "practical effects," on the one hand, and its "merits," on the other hand.  Imagine that distinction applied to Congress:  "Sure, the Act fails to achieve its stated goal, and produces all kinds of unfortunate unintended consequences, but look at the intellectually satisfying reasoning found in the Congressional Record!"

Or as applied to the executive: "Admittedly, the nation's foreign policy is a shambles, making the nation hated around the globe and bringing us that much closer to nuclear Armageddon.  But the Secretary of State's speech was nothing short of masterful!"